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Here at Ars, we've previously discussed how difficult it is for game developers to prove copyright infringement in court. Because copyright only protects the specific expression of an idea and not the basic idea itself, shameless game cloners can often get away with stealing the underlying rules and structure of a popular game without legal trouble. That is, so long as they slightly tweak the "expressive elements" like artwork, music, and sound effects.

But a recent ruling (PDF) in a court case concerning two extremely similar casual games shows the legal theory surrounding game copyright may be slowly expanding in a way that offers developers more protection for more parts of their work.

The situation involves Spry Fox, makers of the popular match-three/village-building game Triple Town. They brought a case against 6waves Lolapps, which cranked out the extremely similar Yeti Town after backing out of negotiations to make an iOS Triple Town port. The games are practically identical from a basic gameplay and progression perspective, right down to the prices of analogous items in the in-game stores and similar language in explanatory dialogue boxes. Yeti Town's main innovation seems to be small cosmetic differences—the enemy characters are changed from bears to yetis, the graphics are rendered in 3D polygons rather than 2D sprites, etc.

6Waves asked Western District Court Judge Richard Jones to dismiss the case, saying that the basic gameplay in Triple Town is not protected by copyright and that those cosmetic differences are enough to make Yeti Town legally distinct. It's the kind of argument that has worked in the past, dating back to at least 1988 when a judge found Epyx's World Karate Championship was just different enough to be distinguishable from Data East's Karate Champ.

This time around, however, Judge Jones rejected 6waves' argument. In doing so, he took an expansive view of which parts of a game can actually be protected by copyright. While the basic rules and idea of Triple Town are still freely copyable, Jones noted that Spry Fox can claim copyright protection for things like "plot, theme, dialogue, mood, setting, pace, and character" (Jones compared games to movie screenplays in this regard). And while 6waves' Yeti Town didn't precisely copy any of these elements from Triple Town, the judge found the similarities in these areas were great enough to let the case go forward. As he put it in the decision:

A writer who appropriates the plot of Gone with the Wind cannot avoid copyright infringement by naming its male protagonist "Brett Cutler" and making him an Alaskan gold miner instead of a southern gentleman. The differences between Triple Town and Yeti Town are more meaningful, but it is at least plausible that they are insufficient to overcome the similarities.

Enlarge/ Just because you can easily tell the games apart doesn't mean one doesn't infringe on the copyright of the other.

What does it mean?

Judge Jones' decision isn't a final ruling on the matter—by denying the motion to dismiss, Jones has simply allowed the case against 6waves to continue moving forward (and probably made it more likely that 6waves will try to settle before a final ruling can be laid down). But the legal reasoning in his ruling is still a significant step forward for protecting game makers and their work.

"What we are seeing... is that courts seem to be taking a more video game-friendly view when defining what constitutes 'the basic idea' of a game," Sunstein Law Group partner and IP litigation expert Jack Schechter told Ars in an e-mail. "When a court—like the Spry Fox court—takes a more curtailed view of 'the basic idea' of a game, it allows innovative game developers to argue that their copyright has been infringed by a copyist's misappropriation of other elements of their game—things like plot, theme, mood, pacing, etc. Overall, I think these additional elements are a bit more 'fuzzy,' and I think they'll force game developers to focus more on whether or not they've come too close to the overall 'look and feel' of a preexisting game."

This sort of legal reasoning extends to a similar decision in a recent case brought by The Tetris Company against a clone called Mino. In declaring that game a "wholesale copy" of Tetris, the judge in the case extended copyright protection to some pretty basic elements of the Tetris design, including the playfield dimensions, the "next piece" box, and "ghost" pieces that show a landing spot ahead of time.

"I think we're seeing the beginnings of an evolution in judicial thought on video games," Schechter said of the decisions. "By and large, these judges don't have a lot of experience playing games. As gaming has become more mainstream and as the courts see more of these cases, I think they're starting to get more comfortable with the current technology and are starting to develop a feel for the state of gaming today."

From a legal standpoint, this is still more of a slow evolution than a rapid sea change. Neither the Tetris case nor the Spry Fox case will be of much use as direct precedent in cases in other districts, Schechter says, and judges are always going to have to determine the "protectable" parts of each game on a case-by-case basis.

But decisions like these help establish the general legal parameters that determine what can and can't be legally copied from an existing game. Jones' decision could have some bearing on the development of EA's lawsuit over Zynga's Sims Social clone, The Ville (Schechter says he's "pretty sure Zynga is not happy to see this outcome," in the Spry Fox case).

"Once the courts provide some better guidance about what’s protectable and what’s not, I think developers are going to be a little more careful about knocking off someone else's game," Schechter said. "Copyright still doesn’t extend to a game's underlying ideas, but game developers need to know that it's not the Wild West, either."

Promoted Comments

I'm actually kind of torn on this. On the one hand, fuck Zynga. And I had the idea of really great games being run out of town because someone came along and cloned it, but with a higher budget. Last but not least, I recognize the value of protecting copyrights and the expression of ideas. On the other hand, a lot of the best games I played were "clones," and there's a long history of cloning in the video and computer games world. Furthermore, where do you draw the line on "movie with same plot but different setting?" How many movies are basically "X, but in the future!" Same with books. Again, some of the better works in any medium can be reduced to a rehashing of something else. Wait, does this mean SyFy can't make movies anymore? Hmmm, that does tip the scales a bit.

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Kyle Orland
Kyle is the Senior Gaming Editor at Ars Technica, specializing in video game hardware and software. He has journalism and computer science degrees from University of Maryland. He is based in the Washington, DC area. Emailkyle.orland@arstechnica.com//Twitter@KyleOrl

Are the courts' dockets all of a sudden so empty that they're actively looking for new cases? Because this ruling is going to absolutely FLOOD the judicial system with copyright claims in pretty short order.

First patents and now copyrights. I really need to get out of the software business... fast.

I'm actually kind of torn on this. On the one hand, fuck Zynga. And I had the idea of really great games being run out of town because someone came along and cloned it, but with a higher budget. Last but not least, I recognize the value of protecting copyrights and the expression of ideas. On the other hand, a lot of the best games I played were "clones," and there's a long history of cloning in the video and computer games world. Furthermore, where do you draw the line on "movie with same plot but different setting?" How many movies are basically "X, but in the future!" Same with books. Again, some of the better works in any medium can be reduced to a rehashing of something else. Wait, does this mean SyFy can't make movies anymore? Hmmm, that does tip the scales a bit.

I understand no decision has been made yet but if everything goes 'right' couldn't it lead to things like Namco owning the 'Third Person Cover Based Shooter' because of Kill Switch and Gears of War could never have happened (just as an example)?

This has to be somewhat of a.. sketchy area... Some of things mentioned (like Tetris Ghost icons) seem pretty iffy to copyright outright.

I agree, but in this instance it is justified IMO. This kinda falls into line similar to certain medical and psychological diagnosis where there is no concrete single THING that can show a person definitively has this problem or that problem (as in, say, an HIV test where it is positive or negative), but rather relies on a certain array of criteria that combine to say the person likely has a given problem. I am not suggesting that doesn't present problems as it leaves a LOT open to interpretation and can cause a huge deal of confusion. Keeping with the Tetris example - there are a number of games that are very similar to it. Dr. Mario was one where you had to rotate and line up two-tone colored pills such that 4 of the same color in a vertical or diagonal would clear - which still involves falling block-like structures, could benefit from the ghost image, and surely makes use of the "next piece" window ... but differs from Tetris where you need to fill an entire row across to clear a line. It seems like pandora's box is about to open up in yet another industry relating to IP cases.... IP laws need to be re-written and clarified for the 21st century ASAP.

Furthermore, where do you draw the line on "movie with same plot but different setting?" How many movies are basically "X, but in the future!"

The difference being that while the movie may be BASED on a similar idea, it was either altered significantly enough or expounded upon enough that there's no way it could be confused with the original. In the case of Zynga, it would be like them creating a movie called "Gravatar" that was shot-for-shot identical to "Avatar" with the exact same dialogue but they changed the skin color from blue to green.

Having said that, I am myself kinda torn based on the screenshots of the game in question in this article. It does seem that the artwork was changed enough that the two can be distinguished apart from each other but then again if the mechanics of the game were copied verbatim (and no prior art existed before the original game) then I could see there being a problem.

This precedent is ridiculous and very bad. It's exactly like receiving copyright protections for your chocolate cake recipe.

If this intellectual dishonest copyright crap was allowed to fly years ago then the only side scroller we would ever know would be Mario. id Software would have had the FPS genre totally locked down and Mortal Kombat would have never seen the light of day.

"I mean come on your honor. They totally copied us. They also made a game with 2 dudes punching and kicking each other with rounds and health-bars."

This is good, but will be hard to draw the line at where a copy begins and enough difference starts.

" The games are practically identical from a basic gameplay and progression perspective, right down to the prices of analogous items in the in-game stores and similar language in explanatory dialogue boxes."

If you have a 1 to 1 mapping of many items such as characters, items, dialogue boxes then you should not be able to claim it as your own.

Would the case be made against the arcade game of Mortal Kombat against Street Fighter? Were just the graphics changed, or did they have new buttons, new moves, new combos, new secrets, and not a 1-to-1 replacement of this character for that one. Basically is it a "port" of a game or an "enhancement to the next step" The former should not be allowed while the later should stand..

Disclaimer: From the perspective that the authors comments are accurate as I have played neither.

While I hate that companies are able to blatantly rip off games and sell them to great profit, I'm not so sure I want video games to turn into a new kind of "software patents" debate.

There's a very fine line between direct ripoffs, slightly altered ripoffs, and games that are similar in play style to an original.

For example, many RPGs, many FPSes and many Racing games don't differ much from each other, but most do not directly rip off assets or mechanics from each other. I'm not convinced a judge or jury would be capable of deciding when something is too close and when it isn't, nor do I think we need to clog the courts with more lawsuits of that nature.

Really, it sucks when someone with more advertising and more money than you can clone your project and get their clone into the public eye, but if you're first to market and do a good job, you should come out on top, most of the time.

In the case of Triple Town vs. Yeti Town, the iOS developers are clearly in the wrong, in my eyes, because after being in talks to port Triple Town to iOS, they decided not to and instead made their own variation of it to receive 100% of the profits. Had the two companies never dealt with each other, it might be more of a gray area, though companies like Zynga live in that gray area, and I don't know that that's any better.

Furthermore, where do you draw the line on "movie with same plot but different setting?" How many movies are basically "X, but in the future!"

The difference being that while the movie may be BASED on a similar idea, it was either altered significantly enough or expounded upon enough that there's no way it could be confused with the original. In the case of Zynga, it would be like them creating a movie called "Gravatar" that was shot-for-shot identical to "Avatar" with the exact same dialogue but they changed the skin color from blue to green.

Having said that, I am myself kinda torn based on the screenshots of the game in question in this article. It does seem that the artwork was changed enough that the two can be distinguished apart from each other but then again if the mechanics of the game were copied verbatim (and no prior art existed before the original game) then I could see there being a problem.

I find myself in agreement. I am optimistic that a majority of judges would be able to tell the difference from two games of the same genre and one that is a clone of another specific game. This doesn't mean I am not nervous about a new front opening in the troll wars, but this doesn't automatically mean whole genres are going to be owned by specific companies. If specific genres haven't been copyrighted by movie studios yet, I don't see how the courts are going to give the nod to game developers.

I seem to be in the minority here, but I agree with the court on this one. Making your game blue and giving it a different title doesn't make it a new game.

If this were a physical good, there would be no question. Anyone can make leather purses, but if you copy a design stitch for stitch and label it "Deeney & Burke" you are still going to lose in court even if you use a different shade of brown.

Do not let games become that legal cesspit that is Apple versus Samsung....

Agreed! This rage towards protectionism is just another case of cutting off the nose to spite the face. How long until Spry Fox gets slapped with copyright lawsuit because one of their games kinda-maybe-sorta looks like another game? I'm sure they'll cry mea culpa, no harm no foul, and expect to get off without so much as a fine. Hell, even the elements these two games have in common could be found in others.

At this point, the only possible hope to maintain copyright as a viable system is to do a total reboot and make the terms only cover cases of actual harm, not this wishy-washy interpretive bullshit, and only for "limited times".

Have you sold a game you've developed? If so, did it make the best-seller list? If so, was it cloned? Did you lose sales because of the clone? Was your brand diluted? If you said no to any of those questions, you don't know what you're talking about.

Please note, this case is about a game developer versus a game developer, so at least some developers think differently from you.

This is good, but will be hard to draw the line at where a copy begins and enough difference starts.

" The games are practically identical from a basic gameplay and progression perspective, right down to the prices of analogous items in the in-game stores and similar language in explanatory dialogue boxes."

If you have a 1 to 1 mapping of many items such as characters, items, dialogue boxes then you should not be able to claim it as your own.

Would the case be made against the arcade game of Mortal Kombat against Street Fighter? Were just the graphics changed, or did they have new buttons, new moves, new combos, new secrets, and not a 1-to-1 replacement of this character for that one. Basically is it a "port" of a game or an "enhancement to the next step" The former should not be allowed while the later should stand..

Disclaimer: From the perspective that the authors comments are accurate as I have played neither.

Why is 18 the age of majority? Seems arbitrary. What about killing a terminally ill man? He was going to die anyway. That definition can be extended to anybody, because everyone dies at some point anyway, right?

Clearly, there is a definition of "enough" that, once agreed upon, can be applied in all subsequent cases. We, as a society, can define it. But define it we must. There is no other way to resolve disputes of such nature, and they are as old as humanity.

Do not let games become that legal cesspit that is Apple versus Samsung....

Agreed! This rage towards protectionism is just another case of cutting off the nose to spite the face. How long until Spry Fox gets slapped with copyright lawsuit because one of their games kinda-maybe-sorta looks like another game? I'm sure they'll cry mea culpa, no harm no foul, and expect to get off without so much as a fine. Hell, even the elements these two games have in common could be found in others.

At this point, the only possible hope to maintain copyright as a viable system is to do a total reboot and make the terms only cover cases of actual harm, not this wishy-washy interpretive bullshit, and only for "limited times".

Lost sales constitute actual harm. The app store makes it very easy to measure lost sales. In cases where actual economic harm is difficult to measure, statutory damages apply. That is what they were designed for. When actions are willful, contemptuous and disregardful to the plaintiff, punitive damages kick in.

Disclaimer: I'm not a lawyer. The statements contained herein may be inaccurate and do not constitute legal advice.

I understand no decision has been made yet but if everything goes 'right' couldn't it lead to things like Namco owning the 'Third Person Cover Based Shooter' because of Kill Switch and Gears of War could never have happened (just as an example)?

This is a really important case, as it's asking the question of where to draw the line. While I can see someone being torn on this, I very much doubt that this would be applicable to something like the above example. "Third Person Cover Based Shooter" can not be copy written as it's a core game-play mechanic and not an "Expression of an Idea." The judge used the example of Gone with the Wind. You can not use the plotline of gone with the wind. But you can make a tragic romance set during the Civil War. And while the two movies will absolutely share certain plot details, they will be two different movies in the end. That's the basic concept of how genre movies are even able to exist (of course, all of this excludes movies inspired by public domain literature, as that has its own set of rules).

What this really comes down to is whether or not LolApps simply re-skinned the game, effectively directly stealing the plotline. They didn't just use a game-play mechanic. They took the game and (from the sound of it) essentially said, "how can we change this just enough to not 'copy' it and get sued." I think the judge has a valid point, and not dismissing the case was (I think) the lesser of two evils.

This is horribly bad. If trends continue in this direction we can kiss small developers goodbye forever, guaranteed. Companies like EA and Activision will have teams of lawyers threatening to sue them into oblivion, their projects never seeing the light of day, unless they work for said big companies. Fear of litigation will stifle creativity.

This precedent is ridiculous and very bad. It's exactly like receiving copyright protections for your chocolate cake recipe.

If this intellectual dishonest copyright crap was allowed to fly years ago then the only side scroller we would ever know would be Mario. id Software would have had the FPS genre totally locked down and Mortal Kombat would have never seen the light of day.

"I mean come on your honor. They totally copied us. They also made a game with 2 dudes punching and kicking each other with rounds and health-bars."

Exactly. Hell, the entire PC market as we know it wouldn't exist if it wasn't for the early PC clones that hit the market and eventually displaced IBM. These were REAL clones, they actually took the IBM BIOS code, disassembled it, and reversed engineered their own version. Yes, IBM took them to court, and LOST! But now, 30 years later, we think that a game that kinda-maybe-sorta looks and plays like another game is a legitimate case of infringement?

This precedent is ridiculous and very bad. It's exactly like receiving copyright protections for your chocolate cake recipe.

If this intellectual dishonest copyright crap was allowed to fly years ago then the only side scroller we would ever know would be Mario. id Software would have had the FPS genre totally locked down and Mortal Kombat would have never seen the light of day.

"I mean come on your honor. They totally copied us. They also made a game with 2 dudes punching and kicking each other with rounds and health-bars."

First, it's not a precedent yet; he's simply allowing the case to move forward. Second, the similarities here are a damn sight far from "all FPS's are the same".

There's no need to be so alarmist. There's a difference between "I took your game and gave it different graphics" and "I made an RPG with a story."

This precedent is ridiculous and very bad. It's exactly like receiving copyright protections for your chocolate cake recipe.

If your recipe includes directions, descriptions, or anything beyond a simple list of ingredients or formula, it can be copyrighted. So saith the US Copyright Office.

You certainly can't copy an entire cookbook of chocolate cake recipes, obviously the book itself is under copyright.

So is Yeti Town like reusing a simple list of ingredients or set of instructions, or is it more like copying a whole cookbook while replacing all the pictures of the cakes? And if you say one game = one cake recipe, what of publishers like Zynga who do nothing but clone other games?

These days we have the problem of people cloning games too precisely. Back in the Atari 2600 and NES days, we had the issue of folks porting games in a way that they didn't even look like the original, or were such a lame, half-arsed version of it it should have been criminal. My how times change.

Lost sales constitute actual harm. The app store makes it very easy to measure lost sales. In cases where actual economic harm is difficult to measure, statutory damages apply. That is what they were designed for. When actions are willful, contemptuous and disregardful to the plaintiff, punitive damages kick in.

Disclaimer: I'm not a lawyer. The statements contained herein may be inaccurate and do not constitute legal advice.

If that was the case, then your computer manufacturer owes billions in lost sales to IBM.

This is good, but will be hard to draw the line at where a copy begins and enough difference starts.

" The games are practically identical from a basic gameplay and progression perspective, right down to the prices of analogous items in the in-game stores and similar language in explanatory dialogue boxes."

If you have a 1 to 1 mapping of many items such as characters, items, dialogue boxes then you should not be able to claim it as your own.

Would the case be made against the arcade game of Mortal Kombat against Street Fighter? Were just the graphics changed, or did they have new buttons, new moves, new combos, new secrets, and not a 1-to-1 replacement of this character for that one. Basically is it a "port" of a game or an "enhancement to the next step" The former should not be allowed while the later should stand..

Disclaimer: From the perspective that the authors comments are accurate as I have played neither.

Well, MK has only 5 buttons, and one of them is block, while SF has 6 attack buttons and uses "back" to block. And all it would take to show the substantial differences in play style is to play them both for 30 minutes each. Skills you learn in one are useless in the other.

It's really not tough to find out where to draw the line.

rpgspree wrote:

glitchc wrote:

Lost sales constitute actual harm. The app store makes it very easy to measure lost sales. In cases where actual economic harm is difficult to measure, statutory damages apply. That is what they were designed for. When actions are willful, contemptuous and disregardful to the plaintiff, punitive damages kick in.

Disclaimer: I'm not a lawyer. The statements contained herein may be inaccurate and do not constitute legal advice.

If that was the case, then your computer manufacturer owes billions in lost sales to IBM.

This is horribly bad. If trends continue in this direction we can kiss small developers goodbye forever, guaranteed. Companies like EA and Activision will have teams of lawyers threatening to sue them into oblivion, their projects never seeing the light of day, unless they work for said big companies. Fear of litigation will stifle creativity.

I think that this would effect companies that make smaller and simpler games more than it would the large gaming companies. Its much harder to copy something that has a lot of parts like a blockbuster game has unless you are actually trying to copy it. I imagine the effects of this will scare smaller developers creating mobile games the most as they only consist of game play mechanics and then the media that go along with it.

If this becomes the standard, then goodbye indie game dev's like Runic Games. Torchlight is an obvious clone of Diablo.

This is a bad change to precedent. Is stare decisis dead?

Torchlight is not a clone of Diablo in the same way that these games are clones of each other. Hell, there are plenty of D2 players who can go feature-by-feature and tell you what Torchlight 2 doesn't have from D2.

The games in question here are (as I understand it) point-by-point gameplay identical. Gameplay elements are copied wholesale exactly as they were in the original, right down to the list of items. That's not merely another game in the genre, like Torchlight; that's plagiarism.

Think of it one step further... take the Madden (disen)franchise for example. I know EA has a stranglehold on it simply because of the exclusive license, however back in the day when 2K Sports had a competing product, 2K Sports became the more popular product - but it was the "Me Too" product. Why? Because it did it better.

But honestly, how would a court possibly be able to determine the difference between two competing NFL Football video games? The game and gameplay concepts are essentially identical. There's not a whole hell of a lot you can do to differentiate yourself from the competition. What happens then? The company that came first will ALWAYS win, even though in a case like this it's a detriment to the consumer since the consumer was voting for the competitor instead of the incumbent (which in this particular example is why EA "bought" the exclusive rights to bury the competition).

The courts have chosen not to wade into what has been a judicial quagmire for a good reason over the last 30 years. This one judge is trying to up-end decades of precedent, for what purpose? If this actually happens, we will no longer have gaming defined by "genres", but we will have gaming defined by individual games. The only ones who will win here are the big developers... but I fear that is the anticipated result anyway.

Has no one ever taken even a highschool level law course? This doesn't spell the doom of all RPG's or all FPS's. It spells the doom for people like zynga who shamelessly copy existing games.

All you need to do is create a test, much like the miler test for obscentiy. 1: Does it create its own version of the genre, or expand on it in any meaningful way?2: Does it play differently than any other game in the genre?3: If you used the other's game assets, would the target audience be able to tell the difference?

(or something similar to that)

princec wrote:

I am a game developer.

This is shit.

Than you work for Zynga, or have an IQ or 12. Any game developer should be thrilled, as a landmark case like this would prevent your game from being copied and repackage, while still leaving you free to make your asteroids clone.

It was a motion to dismiss. That means the judge must construe all facts and reasonable inferences in the non-mover's (tiny town's) favor. So, the judge looks at the two sides's briefs. Decides that if he takes all inferences in Tiny Town's favor; re: the changes are only cosmetic, then Tiny Town prevails against the motion.

A motion to dismiss is basically one side arguing "The other side does not, and could not possible have a valid case even if all the facts alleged were found in their favor."

Don't read too much into the dictum of this ruling. This is also why district court cases aren't worth much when it comes to setting legal precedent.

Sure, it's a rip off. The fact that they even cloned the prices of goods its probably the most damning thing. But where the hell do you draw the line? How do you make it so discrete that juries respect it consistently enough for people to know in advance if their product is going into legal hell? Is Saints Row too close to Grand Theft Auto? Seriously - think about it. Other than prices, how do you make a clear, unambiguous definition that spares SR3 but kills Yeti Town? Gameplay mechanics are essentially the same (hideouts = cribs, buy real estate for money/time, buy weapons/clothes/appearance at stores, steal cars, complete missions to take over city while free roaming and doing taxi-style missions, gang theme, etc...), but the art and storyline are different. I don't know how I'd define clone narrowly enough differentiate an homage from a clone other than actual code, text and art assets.

The damage done by cloning isn't anywhere close to the damage we'd do to gaming if we allow the "basic idea" of a game to be protected.

Hell, the entire PC market as we know it wouldn't exist if it wasn't for the early PC clones that hit the market and eventually displaced IBM. These were REAL clones, they actually took the IBM BIOS code, disassembled it, and reversed engineered their own version. Yes, IBM took them to court, and LOST!

The IBM BIOS was covered under copyright, and it was impossible to make another computer that was both hardware and software compatible without copying it.

Have you sold a game you've developed? If so, did it make the best-seller list? If so, was it cloned? Did you lose sales because of the clone? Was your brand diluted? If you said no to any of those questions, you don't know what you're talking about.

Please note, this case is about a game developer versus a game developer, so at least some developers think differently from you.